Dearing v. Commonwealth

Present: All the Justices

ALFRED DEARING, JR.
OPINION BY JUSTICE LEROY R. HASSELL, SR.
v. Record No. 982401 January 14, 2000

COMMONWEALTH OF VIRGINIA

FROM THE COURT OF APPEALS OF VIRGINIA

The primary issues in this appeal are whether a circuit

court violated a criminal defendant's federal constitutional

right to confrontation by admitting in evidence a co-

defendant's confession and, if so, whether such error was

harmless beyond a reasonable doubt.

I.

Alfred Lovell Dearing, Jr., was indicted by a grand jury

in Alexandria for the robbery of Andre Moore and use of a

firearm during the commission of a robbery. He was tried

jointly with Leroy Vernoise Dorsey, a co-defendant who

participated in the robbery. At the conclusion of a bench

trial, the Circuit Court of the City of Alexandria convicted

Dearing of the charged crimes and sentenced him to a term of

ten years imprisonment, with six years suspended, for the

robbery conviction and three years imprisonment for the

firearm conviction. After the Court of Appeals denied

Dearing's petition for appeal, we awarded Dearing an appeal.

II.
 Applying well-established principles of appellate review,

we must consider the evidence and all reasonable inferences

fairly deducible therefrom in the light most favorable to the

Commonwealth, the prevailing party in the circuit court. Derr

v. Commonwealth, 242 Va. 413, 424, 410 S.E.2d 662, 668 (1991).

On August 7, 1997, between 12:30 and 1:00 a.m., as Andre

Moore was walking on Seminary Road in Alexandria, he observed

a white four-door Honda Civic automobile with Maryland license

plates. Two people were in the car, which traveled past

Moore. The car stopped briefly. Moore observed that the

car's right taillight "was out." Even though Moore could not

see the face of the driver of the car, Moore "could tell [that

the driver] had on a hat turned backwards." The other man was

seated on the passenger side of the car.

Suddenly, Moore saw Dearing standing on the opposite side

of Seminary Road. Moore was able to see Dearing's face

clearly because Dearing was standing under a street light.

Dearing, who had a gun in his hand, "motioned" with his finger

towards Moore. Dearing "raised the gun up," "cocked the gun

[and] started walking across the street."

Moore "emptied [his] pocket[s]" and "dropped to the

ground." Dearing walked over to Moore, cursed at him, and

directed him to "get up, get up." Moore stood up, and as

Dearing pointed the pistol, Moore stated, "I don't have

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nothing. I don't have nothing. . . . Don't kill me. Don't

kill me." Dearing checked Moore's pockets, took his wallet,

and told Moore "[w]elcome to D.C. Welcome to D.C." Dearing

took three one dollar bills from Moore.

Dearing walked across the street and got into the Honda

Civic. Dearing, who was a passenger in the Honda Civic,

"yelled out the window" and laughed at Moore as the two men in

the car rode away.

After the robbery, Moore continued to walk on Seminary

Road. The men who had robbed Moore minutes earlier, returned

in the Honda Civic. Dearing opened a car door, "hopped out of

the car," and accused Moore of concealing money from the

robbers. Moore "immediately dropped to the ground." Dearing

kicked Moore and stated, "[h]e's lying. He's lying. He ain't

walking this late at night. Got more than $3 on him. He's

lying. He's lying." When a driver of another vehicle

traveling on Seminary Road approached the men, Dearing ran

back to the Honda Civic, and Dearing and the driver fled.

Sergeant Joshua Paige, an employee with the Defense

Protective Service Police who was driving a van about 1:00

a.m., observed Moore lying in the street. Sergeant Paige

assisted Moore and contacted the Alexandria Police Department.

A police dispatcher issued an "area lookout" to various

jurisdictions in northern Virginia and requested that they

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"lookout" for a white, four-door Honda Civic bearing Maryland

license plates, which had a broken rear taillight and which

was occupied by two males.

Officer Larry Agne, an Alexandria police officer, went to

the robbery scene to assist Moore. When Officer Agne arrived

at the scene of the robbery, Moore provided him with a

description of the assailants and their car. Moore told

Officer Agne that the assailants were traveling in a white

Honda Civic bearing Maryland license tags. Moore stated that

the driver of the car wore a baseball cap which was "on

backwards." The person who robbed Moore was armed with a

dark-colored semi-automatic pistol, and was wearing a gray

tee-shirt, baggy blue pants, "some kind of necklace," and

brown or tan work boots.

Shortly after 1:00 a.m. that morning, James Wassom, a

police officer with Arlington County, along with several other

police officers, had been following a white, four-door Honda

Civic because that car had been situated "the wrong way" in a

parking lot, and the car's lights were turned off.

Additionally, one occupant left the car, approached another

individual, and then ran back to the car. After Officer

Wassom followed the car for about 30 minutes, he learned that

the car he had been following matched the description of the

car that had been used in the robbery of Moore. The officers

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followed the car from Arlington County into Washington, D.C.,

and then back into Arlington County.

Several police officers, in at least three unmarked

police cars, stopped the Honda Civic. At that time, Dearing

was driving the car, and Dorsey was in the passenger seat.

The police officers removed the men from the car and searched

them. Dearing had a five dollar bill and three one dollar

bills in his pockets. He was wearing navy blue sweatpants, a

gray tee-shirt, and two gold necklaces. When Officer Wassom

read Dearing his Miranda rights, Dearing stated, "this was the

first time that he had been in Virginia that night."

Officer Agne took Moore to the location in Arlington

County where the police officers had apprehended Dearing and

Dorsey. Moore was unable to identify Dorsey. Moore

identified Dearing as the man who robbed him. Moore stated,

"[t]hat's him. That's the guy that robbed me, but he's got

different pants on."

Paul Larson, a detective with the Arlington County Police

Department, interviewed Dorsey. According to Detective

Larson, Dorsey stated "that he and his cousin, Mr. Dearing,

had come into Virginia from Maryland in order to rob somebody.

They drove around, saw a man walking down the street. . . .

Mr. Dearing pointed a black handgun at him, at the victim, and

took a small amount of money, which Mr. Dorsey believed to be

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five one-dollar bills. Then they left the victim there and

drove around some more." Detective Larson wrote the statement

in his handwriting, and Dorsey signed the statement.

Later that morning, Larson searched the area where the

defendants had traveled and found a semi-automatic pistol. At

trial, Moore testified that the pistol that Larson found

appeared to be the same pistol that Dearing used during the

robbery.

III.

Code § 19.2-262.1 states:

"On motion of the Commonwealth, for good cause
shown, the court shall order persons charged with
participating in contemporaneous and related acts or
occurrences or in a series of acts or occurrences
constituting an offense or offenses, to be tried
jointly unless such joint trial would constitute
prejudice to a defendant. If the court finds that a
joint trial would constitute prejudice to a
defendant, the court shall order severance as to
that defendant or provide such other relief justice
requires."

The defendant contends that the circuit court erred by

granting the Commonwealth's motion for a joint trial because

the Commonwealth failed to establish good cause required by

Code § 19.2-262.1. The defendant also claims that he was

prejudiced because he could not compel his co-defendant,

Dorsey, to testify as a witness in a joint trial. The

defendant's contentions are without merit.

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 Code § 19.2-262.1 requires the circuit court, upon a

showing of good cause, to order joint trials for persons

charged with participating in contemporaneous and related acts

or occurrences. Here, the defendant and Dorsey were charged

with participating in contemporaneous acts. The Commonwealth

demonstrated good cause for the joinder of the defendants'

trials because the trials required the presence of numerous

witnesses who would have had to appear at two separate trials

had the motion been denied. Moreover, the record is devoid of

any evidence of any actual prejudice to the defendant.

The defendant claims that he would have compelled Dorsey

to testify if the defendants had been tried separately.

Continuing, the defendant says that his right under the Sixth

Amendment to the federal Constitution "to be confronted with

the witnesses against him; [and] to have compulsory process

for obtaining witnesses in his favor . . . " was violated by

the joint trial. The defendant's arguments are meritless.

The defendant had no right to compel Dorsey, his co-defendant,

to testify in either a joint trial or a separate trial if

Dorsey elected to invoke his right against self-incrimination

guaranteed by the Fifth Amendment to the federal Constitution.

See United States v. Apfelbaum, 445 U.S. 115, 126 (1980)

(absent grant of immunity, witness has privilege against

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compulsory self-incrimination); see also Bruton v. United

States, 391 U.S. 123 (1968).

IV.

A.

The defendant asserts that the judgment confirming his

convictions must be reversed because his co-defendant's

statement was improperly admitted in evidence against the

defendant, thereby violating his right to confrontation

guaranteed by the Sixth and Fourteenth Amendments to the

United States Constitution. The Commonwealth responds that

the statement against the defendant was admissible and any

error that the circuit court committed should be deemed

harmless beyond a reasonable doubt.

The Sixth and Fourteenth Amendments to the United States

Constitution guarantee a defendant in a criminal prosecution

the right "to be confronted with the witnesses against him."

U.S. Const. amend. VI; Pointer v. Texas, 380 U.S. 400, 403-06

(1965). The United States Supreme Court has stated that

"[t]he central concern of the Confrontation Clause is to

ensure the reliability of the evidence against a criminal

defendant by subjecting it to rigorous testing in the context

of an adversary proceeding before the trier of fact."

Maryland v. Craig, 497 U.S. 836, 845 (1990).

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 The Supreme Court in Lilly v. Virginia, ___ U.S. ___,

___, 119 S.Ct. 1887, 1894 (1999), held that the admission in

evidence of an accomplice's confession against a defendant

violates the defendant's right to confrontation if the

confession does not fall within a firmly rooted hearsay

exception or contain particularized guarantees of

trustworthiness such that the adversarial testing of the

statement would be expected to add little, if anything, to the

statement's reliability. Here, we cannot conclude that

Dorsey's confession contained particularized guarantees of

trustworthiness or that the statement was within a firmly

rooted hearsay exception for the Confrontation Clause as

discussed by the Supreme Court in Lilly. Therefore, we hold

that the circuit court erred by admitting Dorsey's statement

in evidence. Thus, we must consider whether this error was

harmless beyond a reasonable doubt.

The Supreme Court, in Chapman v. California, 386 U.S. 18,

24 (1967), held that "before a federal constitutional error

can be held harmless, the court must be able to declare a

belief that it was harmless beyond a reasonable doubt." As

the Supreme Court stated in Delaware v. Van Arsdall, 475 U.S.

673, 681 (1986), "an otherwise valid conviction should not be

set aside if the reviewing court may confidently say, on the

whole record, that the constitutional error was harmless

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beyond a reasonable doubt." See Neder v. United States, ___

U.S. ___, ___, 119 S.Ct. 1827, 1837 (1999).

A court, when determining whether federal constitutional

error is harmless, must consider several factors, including

the importance of the tainted evidence in the prosecution's

case, whether the evidence was cumulative, the presence or

absence of evidence corroborating or contradicting the tainted

evidence on material points, and, of course, the overall

strength of the prosecution's case. Van Arsdall, 475 U.S. at

684; see also Lilly v. Commonwealth, 258 Va. 548, ___, ___

S.E.2d ___, ___ (1999); Schneble v. Florida, 405 U.S. 427, 432

(1972); Harrington v. California, 395 U.S. 250, 254 (1969).

Applying the aforementioned principles, we hold that the

Confrontation Clause error in this case was harmless beyond a

reasonable doubt. Moore, who was able to see the defendant's

face about five to seven minutes during their first encounter,

testified unequivocally that the defendant was the man who

robbed him. Moore was also able to observe the defendant

during the second encounter. Moore identified the defendant

as the perpetrator of the crimes within an hour of the

robbery. When the defendant was apprehended, he was driving

the same car that the defendant and Dorsey used during the

robbery. The defendant was wearing a necklace described by

Moore, and the co-defendant who was in the car when the police

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apprehended the defendants had a baseball cap in his

possession. The robber took three one dollar bills from

Moore, and when the defendant was apprehended, he had three

one dollar bills on his person. Moore testified that a gun

found by the police officers looked like the gun that the

defendant used to rob him.

B.

The defendant's argument that the evidence was not

sufficient to support the convictions for robbery and use of a

firearm to commit robbery is without merit. The facts

summarized in section IV.A. of this opinion are more than

sufficient to support the convictions.

V.

Accordingly, we will affirm the judgment of the Court of

Appeals.

Affirmed.

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